In an important verdict, the Supreme Court on Friday held that a government officer serving a state government or the Central Government cannot be appointed as the State Election Commissioner. The Court passed this significant direction to ensure the independence of the State Election Commission.
A bench headed by Justice RF Nariman issued directions under Article 142 of the Constitution of India to direct that all states and territories in India shall henceforth ensure that it has an Independent State Election Commissioner as mandated under Article 243(4) of the Constitution. (State of Goa vs Fauzia Imtiyaz Sheikh).
The Court gave this ruling in a case related to Goa where law secretary was given the charge as State Election Commissioner.
The case related to Municipality elections in Goa, wherein reservation of wards for woman and SC, ST were not carried out in terms of Section 9 and Section 10 of the Goa Municipalities Act, read with Article 243T of the Constitution.
In 9 Writ Petitions filed before the High Court of Bombay at Goa, the same was challenged and the High Court struck down the notice for reservation of wards on the count of having caused constitutional infractions and being issued de hors the mandate of the Constitution of India.
In SLP's before the Supreme Court filed by the State Government, the State contended that the High Court could not have interfered in the 'election process'. However, the Supreme Court, as per its judgment delivered by a bench comprising Justices RF Nariman, BR Gavai and Hrishkesh Roy, upheld the High Court verdict.
The court has said that the state government could not have and should not have appointed the state law secretary as the state election commission, therefore the independence of the election was sacrificed and the law was made a mockery of.
The Supreme Court has held that this is a special case, with special facts, the election process has not been interfered with or called into question, and what was challenged was 'a step prior' to the conduct of elections.
A bench comprising Justices RF Nariman, BR Gavai and Hrishikesh Roy passed this important direction in exercise of powers under Article 142 of the Constitution to "ensure that the constitutional mandate of an independent State Election Commission which is to conduct elections under Part IX and IXA of the Constitution be strictly followed in the future".
The bench passed this direction after observing that State of Goa "made a mockery of the constitutional mandate" by giving its Law Secretary the additional charge of SEC.
"Giving an additional charge of such an important and independent constitutional office to an officer who is directly under the control of the State Government is, in our view, a mockery of the constitutional mandate. We therefore declare that the additional charge given to a Law Secretary to the government of the state flouts the constitutional mandate of Article 243K", the bench observed.
The Goa Government was directed to remedy this situation by immediately appointing an independent person who is not holding any office or post in the Central or State Government.
The Court termed the subversion of the constitutional mandate for an independent State Election Commissioner by appointing government officers a "disturbing feature".
"The State Election Commissioner has to be a person who is independent of the State Government as he is an important constitutional functionary who is to oversee the entire election process in the state qua panchayats and municipalities. The importance given to the independence of a State Election Commissioner is explicit from the provision for removal from his office made in the proviso to clause(2) of Article 243K. Insofar as the manner and the ground for his removal from the office is concerned, he has been equated with aJudge of a High Court. Giving an additional charge of such an important and independent constitutional office to an officer who is directly under the control of the State Government is, in our view, a mockery of the constitutional mandate.We therefore declare that the additional charge given to a Law Secretary to the government of thestate flouts the constitutional mandate of Article 243K".
The bench further observed :
"It is also made clear that henceforth, all State Election Commissioners appointed under Article243K in the length and breadth of India have to be independent persons who cannot be persons who are occupying a post or office under the Central or any State Government. If there are any such persons holding the post of State Election Commissioner in any other state, such persons must be asked forthwith to step down from such office and the State Government concerned be bound to fulfil the constitutional mandate of Article 243K by appointing only independent persons to this high constitutional office".
The State Government was represented by Mr. Tushar Mehta Solicitor General and Senior Advocate Mr. Mukul Rohatgi, while the Respondents Goa Forward party was represented by Sr. Advocate Mr. Atmaram NS Nadkarni, with Mr. Salvador Santosh Rebello, AOR, Salvador Raghav and Co..
Vivek Tankha Sr Advocate, Mr Carlos Ferreira & Mr Prashant Sivarajan Mr Ujjawal Anand Sharma & AOR D Kumanan (Partners at Lawmen and White) appeared in the matter.
Case Title : State of Goa and another v Fouzia Imtiaz Shaik
Bench : Justices RF Nariman, BR Gavai, Hrishikesh RoyCitation : LL 2021 SC 158